Jose Padilla sentencing hearing this week

As detailed in this article from the South Florida Sun-Sentinel, a high-profile sentencing hearing begins this week in a Florida federal district court. Here are the basics:

Since his arrest in May 2002, Jose Padilla has been locked in a military brig without charges, harshly interrogated and, finally, tried and convicted for supporting terrorism. This week, a Miami federal judge will decide whether the former Broward resident prosecutors call a "trained al-Qaida killer" and defense lawyers describe as an "impressionable Muslim convert" should ever walk free again....

Padilla, 37, Adham Amin Hassoun, 45, and Kifah Wael Jayyousi, 46, were convicted Aug. 16 of three charges in one of the most high profile terrorism trials since the Sept. 11, 2001, attacks. Federal guidelines recommend a term of 30 years to life for Padilla and life for Hassoun and Jayyousi. However, [U.S. District Judge Marcia] Cooke is free to deviate from those guidelines and impose virtually any sentences, which is why a bitter court fight is expected. The sentencing hearing, which begins Tuesday, could last several days because of numerous disputes, including some related to Padilla's 3 1/2-year detention at a South Carolina Navy brig.

A shout-out to great blog work getting noticed

Scott Henson has started 2008 on fire at Grits for Breakfast, and some of the powers-that-be are taking note. Specificaly, on Friday in this post, titled "Court of Criminal Appeals Workload Declining under Judge Sharon Keller," Grits documented a caseload decline in Texas's highest criminal court and suggested that "CCA judges just don't work as hard as they used to." Within 48 hours, Grits had received and posted this thoughtful response from a judge on the court. This passage provide a flavor of the overall response:

The total number of petitions for discretionary review that were filed with the CCA in fiscal 2007 was 1,661. The court has no control over that number. Both defendants and the State have a statutory right to file such petitions. The Court granted 149 petitions–that is, it agreed to hear 149 new discretionary cases in 2007. By comparison, the total number of cases filed in the U.S. Supreme Court during its 2006 Term was 8,857, and it heard 78 civil and criminal cases.

Beyond my interest in the substantive specifics of this debate, it is great to see a serious reform advocate and a prominent judge engaging on these important topics directly in the blogosphere.

Further, as the links below document, Scott is off to a flying start in 2008 covering a number of other important criminal issues dear to my heart:

Virginia's prison population projections

This new article from the Richmond Times-Dispatch provides an effective review of a prison population growth problem facing Virginia (and which is also facing so many other states). Here is how the article starts:

Since 1990, in response to rising crime, predictions of rising crime and tougher sentencing, Virginia has approved 21,000 new prison beds at a cost of more than $1 billion. Barring the unexpected, more prisons are in Virginia's future.

By 2013, Virginia's prison population is expected to grow by 6,700 men and women to 44,700. A half-dozen major prison projects -- costing roughly $300 million -- are planned, under way or have been recently completed. As of June 30, 2007, there were 38,007 state inmates -- 32,651 in more than 40 prisons, field units, work release centers and one privately run prison. The rest were held for the state in local and regional jails.

The Virginia Department of Corrections, now the state's largest agency with more than 13,000 employees, manages a population of felons larger than the cities of Manassas, Petersburg, Fredericksburg or Winchester. "More offenders are being committed to prison, and they are incarcerated, on average, for longer periods," Deputy Secretary of Public Safety Barry Green said. The department's annual budget topped $1 billion this year for the first time.

Intuitions, institutions and sentencing reform

I have a gut feeling that this new article from by Paul Robinson and John Darley, entitled "Intuitions of Justice: Implications for Criminal Law and Justice Policy," is a very important read for anyone seriously interested in sentencing reform. Here is the start of the abstract:

Recent social science research suggests that many if not most judgments about criminal liability and punishment for serious wrongdoing are intuitional rather than reasoned. Further, such intuitions of justice are nuanced and widely shared, even though they concern matters that seem quite complex and subjective. While people may debate the source of these intuitions, it seems clear that, whatever their source, it must be one that is insulated from the influence of much of human experience because, if it were not, one would see differences in intuitions reflecting the vast differences in human existence across demographics and societies. This Article explores the serious implications of this reality for criminal law and criminal policy.

When discussing the challenges of transforming criminal justice institutions, this article echoes some of the themes I developed in this recent article entitled "Rita, Reasoned Sentencing, and Resistance to Change."

Terrific review of Obama's criminal justice record

Over at TalkLeft, Jeralyn has this extended post, titled "Obama and Defendants' Rights: Progressive Or Not?", which reviews his record on various criminal justice issue over the past decade. Here is how Jeralyn describes her review:

Where does Obama stand on criminal justice issues? Is he really a progressive? Will he stand up for the rights of the criminally accused ... or just those of the wrongfully charged or convicted?

He's been quick to point out his admirable work in Illinois getting legislation passed to require mandatory taping of police interrogations and enact some death penalty and racial profiling reforms. He has complained about the racial disparity in crack-powder cocaine sentences and once advocated abolishing mandatory minimums.... More recently, he has retreated to promising a review of mandatory minimum sentences.

Since the mainstream media seems incapable of presenting anything but his words promising change, hope, optimism and a "working majority" (meaning compromise with Republicans), I took an afternoon to research his record going back to 1998. The results, some progressive and laudatory, others decidedly not, as well as my prior posts on his crime record and statements as U.S. Senator and presidential candidate, are detailed [in this post].

Though not exactly on-point, anyone interested in looking even deeper Obama's professional history should be sure to check out this post at the WSJ Law Bog, titled "Barack Obama Was Once a Lowly Law-Firm Associate."

January 6, 2008

The Baze argument (finally) and the long litigation path to Baze

About 12 hours from the time I am writing this post, the Supreme Court will finally hear oral arguments in Baze v. Rees, the case from Kentucky exploring the constitutionality of that state's lethal injection protocols. I say "finally" because, as a result of its September cert. grant and subsequent stay rulings, the Court has with Baze already created the longest execution moratorium in the US for more than a quarter century. And since it is unlikely that we will get any ruling in Baze for months, we many not see an end to this moratorium for a long time.

Fortunately, there is plenty to read to gear up for the argument and then await a ruling: SCOTUSwiki has this extended review of the case basics, as well as links to various additional coverage; How Appealing has collected lots of the latest major media coverage in posts here and here and here; and video coverage is with two lethal injection litigators is available from a C-Span program at this link. And all my Baze coverage is assembled in this category archive.

As regular readers know, I have been following lethal injection litigation closely since the start of this blog and well before the Baze grant. I believe my first major post on the topic was this post, titled "The legal attack on lethal injection," from April 2005. Notably, that post discussed the trial court hearing in the very case that is to be argued tomorrow before the Justices. In the same spirit, here is an abridged blog/legal history with a few milestones (and posts) on the topic before SCOTUS finally took up Baze:

Do Baze and Kennedy and big SCOTUS cases depend on just one Justice?

In the Legal Times, Tony Mauro has this new piece on the state of SCOTUS headlined, "For the Supreme Court, a Docket Full of Drama: High-profile election-year cases will keep justices in the limelight." The piece begins with a discussion of the Baze lethal injection to be argued tomorrow morning. And, though new, the article is already a bit dated because it was obviously written before the cert grant in Kennedy, the case from Louisiana that will test the constitutionality of child rape as a capital offense (details here and here).

An effective post here by Eugene Volokh has me wondering whether Baze and Kennedy and the other big capital cases this Term all will turn on the thoughts and votes of a single Justice, Anthony Kennedy. Since Justice O'Connor's departure two years ago, nearly all the significant capital rulings by the Court have been 5-4 rulings with Justice Kennedy being the swing vote. If past is prologue, there is every reason to expect and predict that the outcomes in both Baze and Kennedy will turn on Justice Kennedy's views on lethal injection and capital punishment for non-homicide crimes.

And yet, Eugene's post suggests the possibility that gender and other concern could perhaps impact the traditional perspectives of some Justices in Kennedy. And, as I have suggested in this prior post, I think the peculiar nature of the issues and dilemmas raised in Baze could skew somewhat the recent 5-4 voting dynamics. However, this may be my own wishful thinking because I am eager, when contemplating the possible outcomes in Baze and Kennedy, to do more than just try to psychoanalyze Justice Kennedy.

Reflecting on these realities highlights for me, yet again, why I find the Supreme Court's non-capital jurisprudence sooooooo much more interesting than its capital jurisprudence. Notably, Justice Kennedy has not been a swing vote in any single one of the Court's Apprendi line of cases over the last decade. Indeed, in many of these cases, a fascinating array of different Justices have been key swingers, ranging from Justice Thomas (in Almedarez-Torres), to Justices Scalia and Breyer (in Harris), to Justice Ginsburg (in Booker). Moreover, in other cases the final vote counts and the nature of the opinions are often pleasantly surprising: Cunningham was a 6-3 decision with the new Chief joining the Blakely five; Rita was technically an 8-1 decision though Justice Scalia wrote a dissent-like opinion and Justice Souter dissenting directly; Gall and Kimbrough were technically 7-2 decisions, but only Justice Alito dissented on the main merits.

With Olympics coming, China works on its capital conventions

Recently, Chinese rights advocates ... have seen progress within a legal system that each year is estimated to execute more people than all other countries combined. Legislation enacted in 2006 requires the high court to review all death sentences, a step that had been dropped two decades ago.

Facing pressure before the 2008 Olympics in Beijing, China reportedly has scaled back the pace of executions. Although the government considers the number a state secret, China executed 1,051 people in 2006, accounting for two-thirds of the 1,591 put to death worldwide that year, according to statistics from Amnesty International, often based on media reports. That represented a 40% drop from China's recorded total of 1,770 the previous year. Yet because of state secrecy, some activists believe that the number of executions could be as high as 10,000 to 15,000 a year....

Sixty-eight offenses, including such nonviolent crimes as tax evasion and pornography distribution, carry the death penalty. Officials are considering reducing the number of crimes punishable by execution, but say corruption, bribery and national security violations might still lead to death sentences.

The reforms, advocated by a growing lobby of Chinese lawyers and scholars, are part of a policy that officials call "kill fewer, kill carefully." It calls for improved trial and review processes, and requires that all death penalty appeals be heard in open court. Experts are divided over how much substance the reforms carry.

Relatedly, as detailed in recent media report, China is moving toward lethal injection over firing squads as its prime execution method. As this Guardian story explains:

China's executioners are to step up the use of lethal injections, a senior court official told state media, in order to make executions "more humane" in the world's leading practitioner of capital punishment.

Maybe accountants and consultants should make sentencing policy

This new AP story reports on a new report about Oklahoma's prison done by a consulting firm, which highlights and suggests solutions to problems facing many states. Here are excerpts:

Oklahoma prisons are antiquated and the state’s prison system is underfunded, according to an exhaustive prison audit made public Friday that says policies requiring some felons to serve 85 percent of their sentences are causing Oklahoma’s prison population to surge.

The audit by MGT of America, Inc., recommends that the Legislature immediately appropriate more than $25 million for state prisons, including almost $14 million to secure 660 maximum-security cells at a private prison in Davis and more than $5 million to hire additional correctional and pardon and parole officers. It also recommends that the governor be removed from routine review of parole requests and that guidelines for diversionary drug courts be changed as part of a plan to cut about $18 million a year from the state’s $477 million prison budget....

The study predicts that Oklahoma’s inmate population will rise from about 25,000 currently to almost 29,000 by 2016. The state already has the fourth highest incarceration rate in the nation. “The increase in the prison population is being largely driven by a longer length of stay and not increased admissions, which are flat,” the audit states.

Since 1999, lawmakers have adopted sentencing policies that emphasize the so-called “deadly sins,” a list of 19 violent offenses that require those convicted of them to serve at least 85 percent of their sentence. The offenses include murder, rape and some forms of robbery, burglary, arson and child molestation. “Changes in the above policies would have a significant impact on the future size of the prison population,” the study says.

In addition, Oklahoma’s parole rates are significantly lower than other states, the audit says. Oklahoma is the only state in the nation in which the governor must sign off on every inmate parole request. It recommends that the governor be involved in the process only for certain heinous crimes similar to guidelines in Maryland and California, where governors play limited roles in the parole process involving inmates convicted of violent crimes or serving lengthy sentences. “Routine parole decisions should be the sole responsibility of the Pardon and Parole Board,” the report says.

Effective review of politics and prison populations

Writing in the Los Angeles imes, Joe Domanick has this effective op-ed headlined "Prisoners of panic: Media hype and political quick fixes have swelled our inmate population." Here are excerpts:

How much more folly, absurdity, fiscal irresponsibility and human tragedy will we endure before we stop tolerating the political pandering that has dictated our criminal justice law and policy over the last two decades?

The pattern has become all too clear. Our politicians, fearful of being labeled "soft on crime," react to sensationalistic coverage of a crime with knee-jerk, quick-fix answers. Only years later do the mistakes, false assumptions and unexpected consequences begin to emerge, and then the criminal justice system is forced to deal with the mess created by the bad lawmaking....

Today, Californians are still paying the price for [its severe three-strikes laws] and other like-minded laws, not just in the ruined and wasted lives of people sentenced under these laws, but in other ways. There are now tens of thousands of inmates in California convicted of nonviolent crimes and serving out long second- and third-strike sentences, as well as thousands more behind bars because minor crimes were turned into felonies with mandatory minimum sentences.

All these laws have contributed to severe overcrowding in the state's prisons -- as high as 200% of capacity -- that has produced conditions of such "extreme peril" for prisoners and guards that Gov. Arnold Schwarzenegger was forced to declare a systemwide state of emergency in 2006.... A large part of the problem is that the prison population is aging because inmates are serving the longer sentences approved by lawmakers, and with aging comes more medical problems....

Faced with the huge budget deficit and judicial threats to cap the state's prison population, Schwarzenegger's office has been floating the idea of early release for about 22,000 inmates convicted of nonviolent crimes. That 13% cut in prisoners, however, would require legislative approval, something that is by no means certain. The story of crime and punishment in California -- and the country -- since the 1980s, after all, has been quick-fix answers fueled by media hype. Let's hope that such proposals as releasing nonviolent inmates receive serious attention rather than panicky headlines that lead to bad criminal justice laws.